Q:
What is Mediation?
A: Mediation is the process by which an
alternative dispute resolution professional, called a
mediator helps the parties reach a resolution of their
dispute. It is a non-binding process involving joint
and separate meetings of the neutral with the parties
in which the role of the neutral is as a facilitator
and intermediary. The mediation process is helpful as
it educates the parties as to the perceived strengths
and weaknesses of their case. The mediation process
also serves as a forum for airing emotional
differences that may stand in the way of resolving
conflict, and thus, may help facilitate a settlement
that both sides can be satisfied with much earlier in
the adversarial process than could otherwise be
reasonably expected.
Q: Who serves as a mediator?
A: A mediator is an impartial person who is
selected by either the parties to help them attempt to
resolve their conflict.
Q: What type of disputes can be submitted to
mediation?
A: Almost any type of dispute can benefit by
mediation, including contract disputes, corporate
disputes, claims for injuries, domain name disputes,
trademark disputes, and civil right issues. By helping
to facilitate early resolution of disputes, the
mediation process can save you time and money. Because
different states have different statute of limitations
which may serve to prevent you from filing your claims
in court after a certain period of time, it is
recommended that you consult with an attorney in your
jurisdiction when you first have knowledge that you
may have a claim requiring resolution or when you
first receive a request to mediation or a demand for
mediation so that you may properly and timely present
your claims or properly and timely respond to those
claims presented by others.
Q: How can I include mediation in my corporate
liability limitation plan?
A: You can include mandatory mediation by
inserting a mediation clause in your form contracts,
construction agreements, articles of incorporation,
shareholder agreements, etc. Mediation can be made a
mandatory, pre-arbitration requirement, with
arbitration being used as a last resort or may be
required as part of the process of initiating and
filing civil litigation.
Q: If there is no mandatory mediation clause in
my contract documents covering a current dispute or if
my dispute is based on an injury and is not contract
related, can I still have my conflict mediated?
A. Yes; if both the parties agree to mediate.
Q: If my contract includes a mandatory mediation
clause, how do I begin the mediation process?
A: If your contract designates mediation, then
the first step is to contact an attorney in your
jurisdiction when you first have knowledge that you
may have a claim requiring mediation or when you first
receive a request to mediation or a demand for
mediation so that you may properly and timely present
your claims or properly and timely respond to those
claims presented by others.
Q: What do I do if I am served with a demand for
mediation?
A: If you are served with a demand for
mediation then it is recommended that you consult with
an attorney in your jurisdiction when you first have
knowledge that you may have a claim requiring
mediation or when you first receive a request to
mediation or a demand for mediation so that you may
properly and timely present your claims or properly
and timely respond to those claims presented by
others.Q.
What is arbitration?
A. Arbitration is a final, and binding
resolution of a dispute by a person called an
"arbitrator", or a panel of three or more "neutrals".
The courts of the majority of jurisdictions uphold the
binding nature of an arbitrator's judgment to the same
extent that they up hold a ruling by a judge.
Q. What types of disputes can be arbitrate?
A. Nearly any type of dispute can be
arbitrated. This includes contractual disputes,
shareholder disputes, claims rising from injuries
caused by automobile accidents, domain name disputes,
tort and civil rights cases, etc..
Q: Who serves as a neutral or arbitrator?
A: A Neutral is an impartial person who is
selected by either the parties to resolve their
conflict. A Neutral Arbitrator is an impartial person
assigned to hear and decide a case. The Neutral
Arbitrator takes the place of the judge and jury by
performing the tasks usually assigned to them, IE:
hearing the facts, applying the law and making an
award. In most cases the neutral is a lawyer and/or a
person having expertise in the subject matter that is
in dispute. Depending on the type of case, come
jurisdictions have minimal qualifications or criteria
that must be met by those acting as arbitrators in
that area.
Q. How is the neutral selected?
A. There are many different ways to select a neutral.
First, the parties can agree upon the person they want
to act as the arbitrator of their dispute. Second, the
parties may be committed by an arbitration clause in a
contract to let the arbitrator of their dispute be
selected according to the rules of the alternative
dispute resolution (ADR) forum designated in the same
clause. These ADR forums typically permit the parties
to rate their preference of neutrals from a list of
available persons, then one that is the most
preferable to both parties, or the least objectionable
to both parties, is selected to the parties'
arbitrator. Third, the parties can agree to follow
some other process for selection of their arbitrator.
An example of such voluntary process would be where
both sides select a neutral and these neutrals
cooperate to select the person who will serve as
arbitrator of the parties' dispute.
Q. What is an arbitration award?
A. An arbitration award is a decision of the
neutral finding for and/or against a party and is made
in writing. In most jurisdictions, the neutral is not
required to render a written explanation of his/her
decision with the award.
Q. Is the award of the neutral legally
enforceable?
A. Yes, the award of the neutral is, with rare
exception, legally enforceable in the court of the
state or country having jurisdiction over the dispute.
Q. Can I arbitrate a current dispute when there
is no contractual arbitration clause?
A. Yes, arbitration of a current dispute may be
accomplished by having all parties to the dispute sign
an Agreement to Arbitrate. It is recommended that you
consult an attorney in your jurisdiction when you
first have knowledge that you may have a claim
requiring resolution or when you first receive a
demand for arbitration so that you may properly
respond.
Q. How do I initiate arbitration if my current
contract has an arbitration clause?
A. If your current contract has an arbitration
clause, but does not name an ADR forum, then, to
initiate arbitration, you simply serve a "Demand for
Arbitration" on the other side. In order to achieve a
viable record of service, it is also recommended that
you send a copy of your demand by certified mail. You
can also file your demand with an ADR forum, and serve
a copy of it on the other side.
Q. Do I need to hire an attorney to represent me
during arbitration.
A. While in the majority of states, there is no
requirement that either corporations or individuals be
represented by an attorney at an arbitration or
mediation, different states do have different
requirements regarding the timing and content of
arbitration demands and responses. There are statute
of limitations that may prohibit you from filing for
arbitration on a claim after the passing of a certain
amount of time, just like they would prohibit the
filing of a lawsuit. Similarly, there are time
requirements for filing a response to a demand for
arbitration that must be met. It is recommended
that you consult an attorney in your
jurisdiction when you first have knowledge that you
may have a claim requiring resolution or when you
first receive a demand for arbitration so that you may
properly and timely respond.
Q. What is an arbitration claim?
A. An arbitration claim is a statement of
injury together with a request for compensation in
either an estimated or certain dollar amount, and/or
that the other party perform or quit performing some
act. A claim is presented by the initiating party in
his/her Demand for Arbitration and by the responding
party in his/her Response to Demand or by either or
both parties in their Agreement to Arbitrate. Because
different states do have different requirements
regarding the timing and content of arbitration
demands and responses and there are statute of
limitations that may prohibit you from serving a
demand for arbitration after the passing of a certain
amount of time, it is recommended that you consult
with an attorney in your jurisdiction when you first
have knowledge that you may have a claim requiring
resolution or when you first receive a demand for
arbitration so that you may properly and timely
respond.
Q. Who is the responding party?
A. The responding party is the party who
responds to a demand for arbitration, by filing a
Response to Demand. The responding party may or may
not include a claim for compensable injuries with
his/her response. This response document may or may
not included a claim or counter-claim for compensable
injuries. Because different states do have different
requirements regarding the timing and content of
arbitration responses and counterclaims it is
recommended that you consult with an attorney in your
jurisdiction when you first receive a demand for
arbitration so that you may properly and timely
respond to it. |
